Dawn in Oceania: The 9th Circuit’s Assault on the 4th Amendment

The denial of the petition for the en banc rehearing of U.S. v Pineda-Moreno by the Court of Appeals for the Ninth Circuit should make Lady Justice scream for review by the United States Supreme Court. U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010).

The majority in Pineda-Moreno held that the 4th Amendment was not violated when police officers snuck onto Pineda-Moreno’s driveway in the middle of the night and attached a GPS tracking device on the underside of his car. Pineda-Moreno, at *2.

The GPS recorded the Appellant’s every moment.

The denial of the rehearing prompted Chief Judge Alex Kozinski to write a forceful dissent, attacking the majority’s mugging of the 4th Amendment. More importantly, it cast a dire warning to not just the 60 million people impacted by the Ninth Circuit’s ruling (1/5 the nation’s population), but everyone in the United States. Pineda-Moreno, at *2-3.

Invading the Curtilage

Chief Judge Kozinski began his dissent summarizing the meaning of “curtilage.”

The majority found that the Appellant’s driveway was part of his home’s curtilage, however, he did not have a reasonable expectation of privacy in his driveway. Pineda-Moreno, at *3.

The “curtilage” is an area around a home that is “so closely associated with the home as to be considered part of it.” Pineda-Moreno, at *3.

The United States Supreme Court has held since the 19th Century that the “curtilage” of a home is entitled to 4th Amendment protection. Pineda-Moreno, at *4.

The Government conceded that the Appellant’s driveway was part of his home’s curtilage, which made the result even more disturbing. Pineda-Moreno, at *5-6.

The majority’s holding that the Appellant had to prove he had a separate reasonable expectation of privacy in his driveway, an area already protected by the 4th Amendment, is the legal equivalent to proving you have a reasonable expectation of privacy in your bedroom. Pineda-Moreno, at *5-6.

The majority’s logic that the Appellant did not have a reasonable expectation of privacy in his Constitutionally protected driveway, was because it was “open” to the public, such as a postal worker or someone wanting to walk up to the front door. Pineda-Moreno, at *7.

Chief Judge Kozinski summed up that service people who have a limited right to enter property to do their job (i.e., a postal worker delivering the mail), does not mean strangers have a right to go swimming in your pool or for the police to search your garage. Pineda-Moreno, at *7-8.

Moreover, claiming the police have the same search powers to enter property as neighborhood kids to get a ball from a front yard would “spell the end of Fourth Amendment protections for most people’s curtilage.” Pineda-Moreno, at *8.

The dissent also took a very big look at an often ignored area: poverty. “Poor people” do not park in gated communities, free of police officers attaching GPS tracking devices to BMW’s. Pineda-Moreno, at *9-10. The standard for privacy cannot be based on one’s economic status. Moreover, the Fourth Amendment applies to everyone in the United States, not those in the highest tax brackets.

Climb Aboard Airship One

The majority held that downloading the GPS tracking data was not a search. Pineda-Moreno, at *10.

The majority based their decision on an early 1980s case where a “beeper” was used to track a car. As the police got closer to the beeper, the signal would become stronger. Pineda-Moreno, at *10-11. The 1980s opinion compared this early technology to using binoculars to enhance your field of vision. Pineda-Moreno, at *11.

The dissent took issue with the comparison of 1980s technology verse 21st Century tracking devices. A GPS unit can pinpoint someone’s exact location on the planet, far more effectively than a beeper signal getting stronger if you are close to it. Pineda-Moreno, at *12.

Chief Judge Kozinski discussed how the use of thermal imaging technology to watch suspects inside a house was a search, because activities inside one’s home are considered private. Pineda-Moreno, at *13. To be blunt, no one expects your neighbors to watch you with Predator vision.

The Chief Judge proceeded to summarize what are any privacy advocate’s worse fears of technology:

Cell phone companies can give police the exact location of a phone on its network;

Roadside services know where you are at any given time;

Companies are building databases of location information for targeted advertising, which can be turned over to police without a warrant.

Pineda-Moreno, at *14-15.

Bow Tie Thoughts

I hope the Supreme Court takes U.S. v Pineda-Moreno and sentences it to the ash heap of history.

Technology makes our lives easier. An iPhone has more computing power then an entire computer room in the 1960s. However, we should not turn the ease of building a database into gutting our protections from unreasonable search and seizures.

In 1990, the largest user of GPS technology was the United States military. The technology was well highlighted in the first Gulf War with precise missile strikes through building windows. In the mid-1990s, the technology became more commercially available for mariners (displacing the Loran-C many boaters used for navigation).

Today, a GPS unit can sit on anyone’s dashboard in their car and pinpoint the nearest gas station for under $200.

In the 1950s, helicopters were a new technology used by the military. By the 1980s, police departments were flying them across the country for law enforcement.

Today, unmanned Predator drones are a key weapon in the war on terror.

How long will it be before police departments use unmanned drones flying over cities? Will it be Constitutional to program a “police” predator to track someone’s smartphone without a warrant?

The prospect of an Orwellian world with the ability to track citizens at any given time is something Stalin would have envied.

Chief Judge Kozinski concluded the dangers of this case very eloquently:

We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Someday, soon, we may wake up and find we’re living in Oceania.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

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Josh, thanks for sharing this. All I can say is thank you, Judge Kozinski, for dissenting loud and clear. It seems like privacy will soon cease to exist unless folks like Judge Kozinski stand up for our right to privacy.